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Wrong assessment of procedure by SC: Fali Nariman

Reactions to the Supreme Court judgment on Article 370 abrogation have been many and diverse. Among such reactions, the voice of Fali Nariman, India’s pre-eminent jurist and constitutional expert has been extraordinary and explicit.

According to Nariman, the judgment of the five-judge bench has been erroneous. In an interaction with India Today, Nariman has said that the verdict “…is, in my view, an incorrect appreciation of the Constitution, which I didn’t expect the court to do.”

Read Cover Story: 370, now an Indefinite Article

Why did he not think so? He explained that it was because the correct route to remove Article 370—and he clearly said that the removal itself was not extra-constitutional, but the manner in which it had been, was—was by using the provisions of Article 368 which gives Parliament (both houses) the power to amend the Constitution.

He said: “Before the judgment came, my view was that the presidential power under Article 370, Clause 3, could not be exercised at all in the manner in which it was done. And for this reason, there is a supervening article in the Constitution (Article 368), which expressly states that each and every provision of the Constitution can be amended.

“And the manner in which it has to be done is that it has to go before two Houses of Parliament, get the requisite majority, and thereafter get the presidential assent. There is no other manner,” Nariman said.

The bifurcation of the state was also not as per prescribed norms, he said. He was surprised that the Court depended on just a judgment from 1960 for that. He said: “…you have to at least approach the state legislature. The Court in 1960 said having app­roached it is enough. You don’t have to take its consent. I think that is a very serious violation of a federal principle.” Then Nariman put forth a very serious accusation, one that uses the basic principle of the republic. “What’s the use of saying that we are a federal state which doesn’t require consent to its downsizing from being a state to a Union territory?” he asked. His words should be taken into consideration in the future, if this judgment goes into appeal, as it probably will.

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